911 Operator Owes No Duty to Caller Absent "Express Assurances"

Harvey v. Snohomish County (Wash. S. Ct., May 18, 2006)

A man who had a painted face, appeared to be wearing a straight jacket, and claimed to be “serving God” attacked Robert Harvey, his infant son, and his neighbor Alex Keltz in Harvey’s condominium. Keltz called 911 as the assailant was breaking into the condo and then passed the phone to Harvey. Harvey asked the operator what to do, and the operator told him he should do whatever he felt was most safe to do. Harvey fired at the assailant and fled as police outside prepared to address the situation.

Harvey sued the county, the sheriff and others for negligence and the trial court dismissed on summary judgment. Under established Washington law, a 911 operator owes no duty to a member of the public unless he gives an express assurance of assistance. The court of appeals reversed summary judgment, finding a question of material fact as to whether the 911 operator gave Harvey express assurances that he justifiably relied on to his detriment. The supreme court disagreed, concluding that (1) no assurance was ever sought by Harvey, (2) no assurance was ever given by the operator, and (3) even assuming a duty had been established, there was no showing of reliance or breach.